State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1842

State of Minnesota,
Respondent,

vs.

Lester Corey Bates,
Appellant.

Filed September 24, 2018
Affirmed
Johnson, Judge

Lyon County District Court
File No. 42-CR-16-1208

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Richard R. Maes, Lyon County Attorney, Abby Wikelius, Assistant County Attorney,
Marshall Minnesota (for respondent)

Cathryn Middlebrook, Chief Appell ate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Connolly, Judge; and
Rodenberg, Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
A Lyon County jury found Lester Corey Bates guilty of felony domestic assault.
The jury’s verdict is based on evidence that Bates threw a half-gallon plastic container of

2
milk at his girlfriend ’s head . We conclude that the prosecutor did not engage in
prosecutorial misconduct, with the exception of two statements that did not affect Bates’s
substantial rights and, thus, are not reversible error. We also conclude that the district court
did not err by imposing an upward durational departure from the presumptive sentencing
guidelines range based on the aggravating factor of the presence of a child. Therefore, we
affirm.
FACTS
On November 13, 2016, Bates’s girlfriend, A.K., picked him up in her car to go to
a movie. A.K.’s one-year-old son was in the back seat. After Bates got into A.K.’s car,
the couple began to argue. They stopped at a gas station to buy milk. They continued to
argue after they drove away from the gas station. A.K. eventually stopped the car to allow
Bates to get out. The couple continued to argue. After Bates got out of the car, he threw a
half-gallon plastic container of milk at A.K.’s head. The milk container struck A.K. on the
right side of her jaw and burst, spilling milk on A.K. and splattering milk throughout her
car. A.K.’s one-year-old son was awake and alert in the back seat when Bates threw the
milk container.
A.K. called 911 and drove to the Marshall Law Enforcement Center. She met
Corporal Rieke in the parking lot. She told Corporal Rieke that she and Bates had argued
and that Bates had thrown a half-gallon container of milk at her, hitting her on the right
side of her face and neck. She told Corporal Rieke that the impact of the milk container
exacerbated pre-existing pain from recent dental work. Corporal Rieke observed that the
right side of A.K.’s face and neck was red and that she was soaked with milk. Corporal

3
Rieke took photographs of the right side of A.K. ’s face and neck . Corporal Rieke also
inspected A.K.’s car and saw milk splattered throughout the interior and a broken plastic
milk container inside the car.
The state charged Bates with one count of domestic assault with intent to cause fear
of immediate bodily harm or death, in violation of Minn. Stat. § 609.2242, subd. 4 (2016),
and one count of domestic assault by intentionally inflicting or attempting to inflict bodily
harm, in violation of Minn. Stat. § 609.2242, subd. 4.
The case was tried to a jury on one day in May 2017. The state called two witnesses:
A.K. and Corporal Rieke. Bates did not testify and did not introduce any other evidence.
The jury found Bates not guilty on count 1 and guilty on count 2. The jury also found that
Bates committed the offense charged in count 2 “in the actual presence of a child who saw
or heard or otherwise perceived the offense.”
At sentencing, the distr ict court found substantial and compelling reasons for an
upward durational departure from the presumptive sentencing guidelines range based on
the jury’s finding that Bates committed the offense in the presence of a child. The district
court imposed a se ntence of 36 months of im prisonment but stayed execution of the
sentence and placed Bates on probation for five years. Bates appeals.
D E C I S I O N
I. Claim of Prosecutorial Misconduct
Bates first argues that the prosecutor committed misconduct in four ways in her
opening statement, her closing argument, and her rebuttal closing argument.

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A. Objected-to Statement
Bates argues that the prosecutor committed misconduct in her rebuttal closing
argument by vouching for A.K.’s credibility. In the challenged statement, the prosecutor
stated, “I’d submit to you that what [A.K.] told you today, while it may have been hard for
her to come here and say it, it was . . . the truth. ” Bates objected on the ground that the
prosecutor vouched for the witness’s credibility , and he moved for a mistrial. The
prosecutor suggested that the district court give the jury a curative instruction. The district
court denied Bates’s motion for a mistrial and determined that a curative instruction was
unnecessary. After the jury’s verdict, Bates moved for a new trial on the ground that the
prosecutor had impermissibly vouched for A.K.’s credibility. The district court denied the
motion on the ground that the prosecutor ’s statement was a comment on the evidence but
not an expression of her personal opinion.
“[A] prosecutor should not . . . vouch for the verac ity of any particular evidence. ”
State v. McArthur , 730 N.W.2d 44, 53 (Minn. 2007). “Vouching occurs when the
government implies a guarantee of a witness’s truthfulness, refers to facts outside the
record, or expresses a personal opinion as to a witness’s credibility.” In re Welfare of
D.D.R., 713 N.W.2d 891, 900 (Minn. App. 2006) (quotation omitted) . Specifically, a
prosecutor “may not interject his or her personal opinion so as to personally attach himself
or herself to the cause which he or she represents.” Ture v. State, 681 N.W.2d 9, 20 (Minn.
2004) (quotation omitted). This prohibition does not “prevent the prosecutor from arguing
that particular witnesses were or were not credible.” State v. Everett, 472 N.W.2d 864, 870
(Minn. 1991).

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In this case , the prosecutor did not express a personal opinion about A.K. or her
testimony. Rather, the prosecutor argued that A.K.’s testimony was credible. The
prosecutor’s statement concerning A.K.’s testimony is similar to the argument in Everett,
in which the prosecutor called attention to the “ mild manner ” of a state’s witness and
invited the jury to “[j] udge his demeanor .” Id. The supreme court concluded that the
prosecutor’s argument was not improper because “the statement s were not in the form of
personal opinions.” Id.
Thus, the prosecutor did not improperly vouch for A.K.’s credibility in her rebuttal
closing argument.
B. Unobjected-to Statements
Bates also argues that the prosecutor committed misconduct on three other
occasions. But Bates did not object at trial to th e three other instances of alleged
misconduct. Accordingly, this court applies “a modified plain -error test .” State v.
Carridine, 812 N.W.2d 130, 146 (Minn. 2012). To prevail under the modified plain-error
test with respect to any particular instance of alleged misconduct, Bates must establish that
there is an error and that the error is plain. State v. Ramey, 721 N.W.2d 294, 302 (Minn.
2006). An error is plain if it “contravenes case law, a rule, or a standard of conduct. ” Id.
If Bates were to establish a plain error, the state would have the burden of showing that the
error did not affect Bates’s substantial rights, i.e., “that there is no reasonable likelihood
that the absence of the misconduct in question would have had a significant effect on the
verdict of the jury. ” Id. (quotations omitted). “If the state fails to demonstrate that
substantial rights were not af fected, ‘the appellate court then assesses whether it should

6
address the error to ensure fairness and the integrity of the judicial proceedings.’” State v.
Davis, 735 N.W.2d 674, 682 (Minn. 2007) (quoting State v. Griller, 583 N.W.2d 736, 740
(Minn. 1998)).
1.
Bates argues that the prosecutor committed misconduct in her opening statement by
making a statement that inflamed the passions and prejudices of the jury. In the challenged
statement, the prosecutor stated:
Now, while these facts today might seem si mple and
concrete, in a case of domestic assault, when emotions of the
victim are involved, the case [becomes] anything but that.
Today, [A.K.] will be asked to do the impossible. She will be
asked to answer personal questions about her sex lif e,
questions about her relation —her past relationship, and
confront her former boyfriend and relive a traumatic
experience. These are things that would be difficult for any of
us under any circumstances, let alone in an open courtroom in
front of twelve strangers.

An opening statement need not be “colorless,” but it must be confined to a
description or outline of the facts a party expects to prove. State v. Bolstad, 686 N.W.2d
531, 544 (Minn. 2004) ; Tucker v. State , 245 N.W.2d 199, 202 (Minn. 1976); State v.
Montgomery, 707 N.W.2d 392, 399 (Minn. App. 2005). In describing the anticipated
evidence, the prosecutor must not use language that may inflame the passions and
prejudices of the jury. Montgomery, 707 N.W.2d at 399 -400. Here, the challenged
statement does not appear to have been designed to inflame the passions and prejudices of
the jury and likely did not do so. The statement appears reasonably related to evidence the
state intended to introduce and, thus, information the jury would perceive dur ing the

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evidentiary phase of trial. In light of its relatively innocuous nature , the prosecutor’s
statement is not plainly misconduct.
2.
Bates also argues that the prosecutor committed misconduct in her closing argument
by making a statement that inflamed the passions and prejudices of the jury. In the
challenged statement, the prosecutor said to the jury, “with your verdict of guilty, I ’d ask
that you convey to [ A.K.] and to [ A.K.’s child] someday, that this type of behavior and
what [A.K.] experienced is against the law.”
The state’s closing argument must be based on the evidence introduced at trial or
reasonable inferences from th e evidence. State v. M orton, 701 N.W.2d 225, 237 (Minn.
2005); State v. Crane , 766 N.W.2d 68, 74 (Minn. App. 2009), review denied (Minn.
Aug. 26, 2009). “It is improper for the prosecutor to make statements urging the jury to
. . . send a message with its verdict.” State v. Duncan, 608 N.W.2d 551, 556 (Minn. App.
2000), review denied (Minn. May 16, 2000). The prosecutor should not do so because
the jury’s role is not to enforce the law or teach defendants
lessons or make statements to the public or to ‘let the word go
forth’; its role is limited to deciding dispassionately whether
the state has met its bur den in the case at hand of proving the
defendant guilty beyond a reasonable doubt.

State v. Salitros, 499 N.W.2d 815, 819 (Minn. 1993). Here, the prosecutor used language
that essentially asked the jury to “send a message.” The prosecutor’s statement plainly is
misconduct.

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3.
Bates also argues that the prosecutor committed misconduct in her rebuttal closing
argument by making a statement that shifted the burden of proof to Bates. In the challenged
statement, the prosecutor said, “I’d submit to you that there [was] nothing that [ A.K.]
testified to today that was contradicted by the Defense.”
“A prosecutor may not comment on a defendant ’s failure to . . . contradict
testimony.” State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995). Such a comment “may
suggest to the jury that the defendant bears some burden of proof. ” Id. In Porter, the
supreme court determined that the prosecutor engaged in misconduct by arguing that the
defense failed to impeach the state’s witness because the argument tended to shift the
burden of proof to the defense. Id. at 364-65. Here, the prosecutor did exactly what Porter
prohibits: she stated that Bates did not contradict the state’s evidence. The prosecutor’s
statement plainly is misconduct.
4.
Because we have concluded that two of the challenged statements by the prosecutor
were plainly misconduct, we must proceed to the third step of the modified plain-error test,
at which the state has the burden of showing that the plain error did not affect Bates’s
substantial rights, i.e., “that there is no reasonable likelihood that the absence of the
misconduct in question would have had a significant effect on the verdict of the jury. ”
Ramey, 721 N.W.2d at 302 (quotations omitted). Here, the prosecutor ’s erron eous
statements were very brief. See State v. Johnson, 915 N.W.2d 740, 746 (Minn. 2018); State
v. Powers, 654 N.W.2d 667, 679 (Minn. 2003); State v. Washington, 521 N.W.2d 35, 40

9
(Minn. 1994). The district court instructed the jury that counsel’s arguments were not
evidence and that the jurors were “the sole judges of whether a witness is to be believed
and of the weight to be given a witness’s testimony.” See Johnson, 915 N.W.2d at 747 ;
Washington, 521 N.W.2d at 40. The district court also instructed the jury on the elements
of the offenses and that the state had the burden of proof. In addition , the jury acquitted
Bates of one count of domestic assault, which tends to show that the jury understood that
the state had the burden of proof. See State v. DeWald, 463 N.W.2d 741, 745 (Minn. 1990).
Furthermore, the evidence of Bates’s guilt is overwhelming. A.K. testified in detail about
the incident, and her testimony was corroborated by Corporal Rieke ’s testimony.
Moreover, the evidence included photographs of A.K.’s red face and jaw and of the interior
of her car. One photograph depicted a broken plastic milk container and splattered milk.
Thus, the prosecutor’s plainly erroneous statements did not affect Bates’s substantial rights.
II. Upward Durational Departure
Bates also argues that the district court erred at sentencing by imposing an upward
durational departure on the ground that a child was present when he committed the offense.
The Minnesota Sentencing Guidelines specify a presumptive sentence for a felony
offense. Minn. Sent. Guidelines 2.C (2016). The presumptive sentence is “presumed to
be appropriate for all typical cases sharing criminal history and offense severity
characteristics.” Minn. Sent. Guidelines 1.B.13 (2016). Accordingly, a district court “must
pronounce a sentence . . . within the applicable [presumptive] range unless there exist
identifiable, substantial, and compel ling circumstances to support a departure.” Minn.
Sent. Guidelines 2.D.1 (2016 ); see also State v. Kindem , 313 N.W.2d 6, 7 (Minn. 1981).

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“Substantial and compelling circumstances are those demonstrating that the defendant ’s
conduct in the offense of conviction was significantly more or less serio us than that
typically involved in the commission of the crime in question.” State v. Hicks, 864 N.W.2d
153, 157 (Minn. 2015) (quotation omitted). The guidelines provide a non-exclusive list of
aggravating factors that may justify a departure. Minn. Sent. Guidelines 2.D.3.b (2016).
In this case, the district court relied on one of the aggravating factors in the
guidelines’ non-exclusive list: “The offense was committed in the presence of a child. ”
Minn. Sent. Guidelines 2.D.3.b.(13) (2016); State v. Vance, 765 N.W.2d 390, 393 (Minn.
2009). An offense is committed in the presence of a child only if “the child sees, hears, or
otherwise witnesses some portion of the commission of the offense in question. ” State v.
Robideau, 796 N.W.2d 147, 152 (Minn. 2011).
Bates contends that the presence-of-a-child aggravating factor does not apply in this
case on the ground that the presence of A.K.’s one-year-old child did not make his conduct
“particularly outrageous ” because it “did not heighten, significantly or otherwise, the
seriousness of [his] conduct.” We can resolve Bates’s contention without considering the
particular facts of this case. U nder the sentencing guidelines, the presence of a child , by
itself, is a sufficient basis for an upward durational departure. See Minn. Sent. Guidelines
2.D.3.b.(13) (2016); Vance, 765 N.W.2d at 393. There is no additional requirement. The
district court need not find that other circumstances surrounding th e commission of the
offense are “substantial and compelling circumstances to support a departure,” Minn. Sent.
Guidelines 2.D.1 (2016), or that “the defendant’s conduct in the offense of conviction was

11
significantly more . . . serious than that typically i nvolved” for reasons other than simply
the presence of a child, Hicks, 864 N.W.2d at 157.
Bates also contends that the evidence is insufficient to establish that A .K.’s one-
year-old son actually saw, heard, or otherwise perceived some portion of the commis sion
of the offense. See Robideau, 796 N.W.2d at 152. Contrary to Bates’s contention, A.K.
testified that her son was awake and alert in the back seat while A.K. and Bates were
arguing and when Bates threw the milk container at her. Although it is unclear whether
the child was facing forward or backward , the evidence allows an inference that , at the
least, the child heard the sounds of Bates’s criminal conduct.
Thus, the district court did not err by imposing an upward durational departure from
the presumptive sentencing guidelines range.
Affirmed.